ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA

ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA

ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA

Practice and procedure - Access to list of documents referred to in an affidavit - Order 26 r 8(2) Rules of the Supreme Court 1971 (WA) - Relevance of discovery to such an application - Applications received via e-mail - Compliance with O 59 r 9 Rules of the Supreme Court

Rules of the Supreme Court 1971 (WA), O 4A r 17(1), O 26 r 1, O 26 r 7, O 26 r 8(2)

Schreuder v Murray [No 2] [2009] WASCA 145

1 MARTIN CJ: In these proceedings each applicant challenges decisions made by the Prisoners Review Board (the Board) revoking their parole. The Board has filed a submitting appearance, and has not taken any substantive part in these proceedings. The Attorney General for Western Australia has intervened.

2 Each applicant sought orders enabling their solicitors and counsel to inspect documents in the possession of the Board, which it is asserted are or may be relevant to the matters in issue in these proceedings, on the basis of undertakings to keep the information confidential. The Board did not accede to the applicants' request, and asserted that all its documents should remain confidential for several policy reasons. For reasons which I gave at the time, I ordered that the documents, being essentially the files maintained by the Board in respect of each applicant, be produced to the court in order that I could review the documents and ascertain whether any, and if so which, were relevant to the matters in issue. I also directed that counsel and solicitors acting on behalf of the intervenor be given the opportunity to inspect the documents in order that the intervenor could determine whether he wishes to assert that any of the documents should not be produced for inspection on public interest grounds. The opportunity to inspect was provided on the basis of confidentiality undertakings provided by solicitors and counsel for the intervenor to the effect that they:

... will not disclose the documents and will not discuss the documents or their contents with any other person other than to or amongst the representatives of the State Solicitor's Office or representatives of the Attorney General and the respondent.

3 The documents were produced by the Board to the court. At the same time, the Board produced, of its own volition, a list, providing a description of each document produced in each case.

4 The intervenor has asserted that some of the documents produced in respect of each applicant should not be available for inspection on public interest grounds. In each case, an affidavit of Sharon Lee Holland sworn 13 August 2010 was filed in support of that assertion. At the most recent hearing in each case, I directed that these affidavits be served upon the representatives of each applicant.

5 The affidavit of Ms Holland filed in each matter refers to the list of documents produced by the Board to the court. Upon being served with the affidavit, each applicant gave notice to the solicitors for the intervenor, pursuant to O 26 r 8(2) Rules of the Supreme Court 1971 (WA) (RSC) requiring that the list produced by the Board be produced to the applicants' legal advisors for inspection on the undertakings as to confidentiality previously proffered. An email from counsel for each applicant to the solicitors for the intervenor advised that inspection was sought prior to the time which I had fixed for each applicant to advise the intervenor and the court of the documents which they wished to inspect, notwithstanding the claim for public interest immunity from inspection.

6 The solicitors for the intervenor responded by letter to each notice in terms which made it clear that production of the list would not be provided. The letter did not state whether or not the solicitors for the intervenor had a copy of the list, but asserted that the list was in the custody of the court. Given that the solicitors for the intervenor had been given the opportunity to inspect and copy the documents produced by the Board (and the list produced by the Board in each case); that the list was referred to in each of the three affidavits executed by Ms Holland prepared and filed on behalf of the intervenor; and further, given that the intervenor does not assert either in correspondence or in submissions that the intervenor does not have a copy of the list, it is reasonable to infer, and I do infer, that a copy of each list was in the possession of the intervenor at the time notice requiring inspection was served. If that were not the case, one would have expected the solicitors for the intervenor to say so, as it would have provided a short answer to the notice.

7 The legal representatives of each applicant drew the impasse to the attention of the court by an email to my Associate which was copied to the solicitors for the intervenor and it was agreed that the issue would be resolved by me on the basis of written submissions filed by the parties. This was an obviously convenient course to adopt, given that inspection of the list was sought within the context of a relatively tight timetable which I had set with respect to the steps to be taken in relation to the claim for public interest immunity from inspection. Obviously the timetables which I have set in these cases take account of the fact that each applicant asserts the invalidity of decisions which have resulted in the loss of his liberty.

8 Pursuant to these arrangements, the intervenor filed and served submissions opposing an order that they produce the list for inspection by the solicitors for the applicants. As with the letter to which I have already referred, while those submissions assert that each list is in the custody of the court, they do not disclose whether or not the intervenor has a copy of the list. Again, if the intervenor did not have a copy of the list, one would have expected that point to be made in the submissions, as it would be a complete answer to the application.

9 The intervenor advanced four propositions in opposition to the applicants' claim to inspect the list:

(1) Order 26 r 8(2) RSC only applies where discovery has been ordered under O 26 r 7 RSC or where discovery has been provided without an order under O 26 r 1 RSC;

(2) The request to inspect a copy of the list of documents 'is akin to de facto discovery';

(3) The provision of inspection of the list would be contrary to the undertakings provided by solicitors and counsel for the intervenor; and

(4) The applicants should have applied to the court by motion for a copy of the list, rather than send a notice via e-mail to the solicitors for the intervenor.

(1) A party who has served a list of documents on any other party in compliance with Rule 1 or with an order under Rule 7 must allow the other party to inspect the documents mentioned in the list, other than any which he objects to produce, and must when serving a list on the other party also serve on him a notice stating a time within 7 days after the service thereof at which the said documents may be inspected at the place specified in the notice.

(2) Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection by the party giving the notice.

(3) The party on whom the notice is served under paragraph (2) must within 4 days after service of the notice serve on the party giving the notice a notice stating a time within seven days after the service thereof at which the documents or such of them as he does not object to produce, may be inspected at the place specified in the notice, and stating which, if any, of the documents he objects to produce to in the grounds of his objection.

...

11 There is no basis whatever in the language of the rule for the assertion by the intervenor that the entitlement to inspect under the process provided by O 26 r 8(2) RSC is conditioned upon the making of an order for discovery or provision of discovery without an order. So far as I am aware, O 26 r 8(2) RSC has never been construed as the intervenor would assert, which is contrary to the plain language of the rule.

12 In Schreuder v Murray [No 2] [2009] WASCA 145, Buss JA referred (at [55]) to a portion of the reasons of the Judge below (Newnes J) in which his Honour had made clear that the right to inspect under O 26 r 8(2) RSC was a right conferred as an alternative, or in addition to, discovery. Neither Buss JA, nor any other member of the Court of Appeal suggested that there was any error in that view, which is plainly supported by the language of the rule, and by established practice.

13 Next the intervenor asserts that the claim to inspect the list is a claim 'akin to discovery'. This assertion is baseless. The applicant seeks to inspect a single document, which lists other documents. The applicant does not seek to inspect those other documents, but merely seeks the list in order to place the documents in respect of which public interest immunity from inspection has been claimed in their context. The list is a document referred to in an affidavit filed by the intervenor in each case, and there is no reason why O 26 r 8(2) RSC should not be applied.

14 The intervenor asserts that provision of a copy of the list to the applicant would be a contravention of the undertaking of confidentiality which they gave at the time of inspecting the documents produced by the Board. However, that undertaking was given in respect of the documents produced by the Board pursuant to my order - namely, the substantive documents generated or retained by the Board at the time of dealing with each case under review. The list was not produced by the Board pursuant to any order of the court and does not fall within the scope of the undertaking as to confidentiality provided.

15 Further, it is of significance that the intervenor does not assert that there is anything in any of the lists which the applicants wish to inspect which could give rise to a claim for public interest immunity from inspection, nor does the intervenor assert that there is anything in any of the lists which is confidential, and in any event, inspection was only sought by the legal advisors for each applicant on the basis of undertakings as to confidentiality. Given that the intervenor intervenes in his own right, and does not represent the Board, it is difficult to see why the intervenor has resisted the operation of O 26 r 8(2) RSC.

16 Finally, the intervenor asserts that each applicant should have applied to the court by motion for a copy of the list, rather than serve notice under O 26 r 8(2) RSC. This submission ignores the plain and ordinary language of O 26 r 8(2) RSC, which confers a right of inspection upon the party serving the notice. It is only the intervenor's denial of that right which has necessitated judicial intervention.

17 For the reasons I have given, the intervenor's opposition to the applicants' right of inspection was baseless. Further, that opposition does not appear to have been maintained for any purpose or objective relevant to the interests of the intervenor.

18 The submissions for the intervenor conclude with the assertion that:

All future applications should be made in accordance with the rules of the Supreme Court 1971 (WA) supported by affidavits where necessary and O 59 r 9 memoranda, unless the application is a consent application, and not merely by email without conferral.

19 For the reasons I have given, each applicant complied with the RSC. It was the intervenor who failed to comply with the rules, by refusing to provide inspection as required by the rules.

20 The pedantic approach to procedure connoted by the assertion I have set out above is inconsistent with the flexible and functional approach to case management now embodied in the RSC. Pursuant to the RSC, procedures will be adopted which are best suited to the just and expeditious resolution of the particular case. Order 4A r 17(1) RSC provides that a party may ask for an interlocutory order or case management direction at any time. The RSC provide that this request be made by letter to the Associate to the Judge who is case managing the matter.

21 In the present case, notice was given of orders sought by each applicant by way of e-mail exchange, given the tight timetable which had been set and the context to which I have already referred, being proceedings in which a challenge is made to the legality of decisions which have deprived each applicant of his liberty, the course taken by each applicant was entirely appropriate, and the criticism implicit in the assertions made on behalf of the intervenor unwarranted.

22 Compliance with the obligation of conferral imposed by O 59 r 9 RSC is of the utmost importance, as I have observed on a number of occasions. However, in this case the solicitors for the intervenor had made clear their opposition to the request for inspection, on grounds which I have found to be baseless. In those circumstances, the course followed by the applicants enabled the court to resolve the matter within a couple of days, which was consistent with the timetable which I had set for the resolution of issues relating to the claim for public interest immunity from inspection. Further, the e-mail from counsel for the applicants detailed his attempts at conferral.

23 These are the reasons why, on 25 August 2010, I ordered that the solicitors and counsel for each applicant be provided with a copy of the list which they sought, to be received by them in terms of the confidentiality undertaking which they had previously provided, and further ordered that the intervenor pay the costs of each application which, if not agreed, will be fixed by the court or taxed.